Crouch v Zelichowski [2002] NSWSC 681

New South Wales Supreme Court

CITATION : Crouch v Zelichowski [2002] NSWSC 681 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4652 of 2000 HEARING DATE(S) : 29, 30 April, 1 May 2002 JUDGMENT DATE : 2 August 2002

PARTIES : Wendy Anne Crouch (Plaintiff) Coral Ann Zelichowski (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : J.S. Drummond (Plaintiff) D.M. Loewenstein (Defendant) SOLICITORS : Friedlieb Byrne, Solicitors (Plaintiff) Holman Webb Lawyers (Defendant) CATCHWORDS : Succession - Family Provision - Claim by de facto widow - Matrimonial home was originally owned by testator - Then transferred into joint tenancy between testator and Plaintiff - Severance of joint tenancy - Property held by testator and Plaintiff as tenants in common in equal shares - By will testator gave to Plaintiff right of residence for life in his one half share in house property - Testator was survived by three adult children (one mentally and physically disabled) - Residue of estate to be held on three separate and differing trusts for the three children - Whether the Plaintiff has been left without adequate provision for her proper maintenance - Effect of right of residence for life in one half of house property, where Plaintiff owns other half - Undesirable that there be any continuing relationship between Plaintiff and children of testator, in consequence of foregoing testamentary provisions - Competing claims of children - One of those children is physically and mentally disabled - Another was a heroin addict who has significant health problems - Financial and material circumstances of children - Size of estate - Amount available for distribution after costs of present proceedings are taken into account LEGISLATION CITED : Family Provision Act 1982 CASES CITED : Singer v Berghouse (1994) 181 CLR 201 DECISION : (1). I order that, in lieu of the provisions of clause 3 of the will of the late Gregory William Leech ("the Deceased"), the Plaintiff receive absolutely the interest of the Deceased in the property known as 37 Thorne Street, Wagga Wagga; (2). I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the estate of the Deceased; (3). The exhibits may be returned.